(225 P.) where a material allegation is wholly lacking in a pleading, the rule cannot be invoked to supply by inference a cause of action not even defectively stated. Commissioners' Opinion, Division No. 1. Appeal from District Court, Oklahoma County; E. D. Oldfield, Judge. Action by James C. Davis, Director General, against the Pan-American Refining Company and the Okmulgee Producing & Refining Company. From an order overruling the demurrer to the second amended petition, last-named defendant appeals. Remanded with directions. the time allowed by law for so doing. It is not contended that defendant filed any other pleading thereafter in the action or that it asked for any kind or character of relief in defendant had announced in open court its the trial court. It is not contended that if election to stand upon its demurrer that its remedy by appeal would not have been complete, but it is insisted that, since the record is silent as to such an election, the order overruling the demurrer is not final, and therefore not appealable until there is judgment in the action upon the merits. The facts that no relief was requested of the trial court by the defendant, no time asked within which to plead further, that an entry of default was suffered to be made, and that the appeal was lodged in this court promptly, are certainly tantamount to an election to stand upon the demurrer which is as effective and binding as if the election had been announced and entered upon the minutes of the trial court. In Bartholomew v. Guthrie, 71 Kan. 705, 81 Pac. 491, in the first paragraph of the syllabus, it is stated: This action was commenced June 23, 1920, to recover upon four separate causes of ac tion for freight alleged to be due from defendants to plaintiff. Various preliminary proceedings were had in the action, and on October 8, 1921, the plaintiff filed his second amended petition to which Okmulgee Producing & Refining Company, a corporation, interposed a demurrer separately to each of the four causes of action therein stated, the third ground of demurrer as to each count reading "that said petition does not state facts sufficient to constitute a cause of action against this defendant." Hearing was had on this demurrer December 3, 1921, and an order was entered overruling the same, to which de-issues is rendered against him." "Error will lie to the Supreme Court from a decision of a district court which sustains or overrules a demurrer, even when the party against whom the ruling is made stands upon his exception thereto, and no judgment on the murrant excepted and gave notice in open In Exchange Oil Co. et al. v. Crews, Guarcourt of its intention to appeal to the Su-dian, et al., 90 Okl. 245, 216 Pac. 674, the first preme Court, and asked that such notice be paragraph of the syllabus reads: entered upon the minutes of the court, which was done. Thereupon plaintiff moved that a the court overruling demurrer to petition re"A defendant who seeks to have an order of default be entered in the action against viewed in this court may elect to stand on the Okmulgee Producing & Refining Company, demurrer, in which event he may bring the case which was accordingly done and exception on appeal to this court at once, or he may elect saved. Thereafter on May 8, 1922, petition to plead further, in which event no appeal can in error with duly certified transcript was be taken from the order overruling the demurfiled in this court. The parties will be hereaft-rer until the case is tried, and then the action er referred to as plaintiff and defendant, re- of the trial court in overruling the demurrer spectively, as they appeared in the trial may be presented to this court by appeal." court. It is concluded that the facts shown by the Wm. H. McClarin and Poe & Lundy, all of record in this case constitute an election by Tulsa, for plaintiff in error. W. F. Evans, of St. Louis, Mo., and Stuart, Sharp & Cruce, and W. T. Stratton, all of Oklahoma City, for defendant in error. LOGSDON, C. (after stating the facts as above). [1] Preliminary to a consideration of the merits of this proceeding, it is necessary to dispose of a motion filed in this court by the plaintiff to dismiss this appeal. Plaintiff's contention upon the motion to dismiss is that, since the record fails to disclose that defendant elected to stand upon its demurrer in the trial court, the order overruling said demurrer is not a final and appealable order. It is shown by the record that upon the overruling of its demurrer to the second amended petition the defendant reserved its exception and gave notice of its intention to appeal, and that its appeal has been perfected within the defendant in the trial court to stand on its demurrer, and that the motion to dismiss the appeal should be overruled. Upon the merits of the case the defendant relies upon a single proposition for reversal; said proposition being stated in its brief as follows: "That the second amended petition, demurrer to which was by the court overruled, does not state facts sufficient to constitute à cause of action against plaintiff in error, and its demurrer should have been sustained." The charging part of the second amended petition under the first cause of action reads as follows: "For his first cause of action against the defendants and each of them, plaintiff alleges that on or about the 10th day of December, 1917, there was delivered to the Pennsylvania lines of railway by the Stern Car Construction Com pany, at Sharon, Pa., five new empty tank cars, ground for liability, as alleged in said secfor transportation from Sharon, Pa., to Tulsa, ond amended petition, is in effect that if the Okl., consigned to the defendant Pan-American Pan-American Refining Company did not reRefining Company. The same were received in ceive delivery on its own account solely then course of transportation by the St. Louis-San it did receive delivery for the joint account Francisco Railroad, in charge of the Director General, at St. Louis, Mo., as a connecting and of both companies, and that thereby both delivering carrier, and transported over its companies became jointly and severally lilines from said point to Tulsa, Okl., and delivered to said Pan-American Refining Company, and accepted by it on its own account, or for the joint account of said company and the Okmulgee Producing & Refining Company (the exact facts being to this plaintiff unknown), whereby both defendants became jointly and severally liable. "Plaintiff avers that the legal freight charges covering the transportation of said new tank cars between Sharon, Pa., and Tulsa, Okl., at said time, in accordance with the published tariffs on file with and approved by the Interstate Commerce Act (Commission) amounted to $69.80, on each car, or a total sum of $349; that there was paid thereon by the Pan-American Refining Company, on its own account or for the account of both defendants (the exact facts being to this plaintiff unknown), the sum of $27.62, on each car, or a total sum of $138.10, leaving a balance due and owing of $210.90, as per itemized statement hereto attached, marked Exhibit A, and made a part hereof. Plaintiff avers that no part of said balance due has been paid, although demand has been duly made." Except for difference in amounts, names of consignors and places of origin of the shipments, the charging part of each of the other three causes of action is identical with the above paragraphs from the first cause of action. Does the language contained in these allegations state a cause of action or exhibit a liability against the defendant Okmulgee Producing & Refining Company? It will be observed that under said allegations the PanAmerican Refining Company is the consignee, and it is expressly alleged that delivery was made to said Pan-American Refining Company, "and accepted by it on its own account." There is nowhere any allegation of any connection between the Pan-American Refining Company and the Okmulgee Producing & Refining Company. There is nowhere any allegation of liability on the part of the Okmulgee Producing & Refining Company to the plaintiff upon any contract or agreement, express or implied. It is nowhere alleged that the Okmulgee Producing & Refining Company received any benefit by reason of the delivery to the consignee, but the sole able. To sustain the action of the trial court, plaintiff cites and relies upon several cases arising under the Interstate Commerce Act. The cases cited are Atchison, T. & S. F. R. Co. v. Wagner, 102 Kan. 817, 172 Pac. 519, L. R. A. 1918D, 1105; Great Northern R. Co. v. Hyder (D. C.) 279 Fed. 783; Western & Atlantic R. Co. v. Underwood (D. C.) 281 Fed. 891; Pittsburgh, Cincinnati, Chicago & St. Louis R. Co. v. Fink, 250 U. S. 577, 40 Sup. Ct. 27, 63 L. Ed. 1151; Louisville & N. R. Co. v. Central Iron & Coal Co. (C. C. A.) 284 Fed. 250. An examination of these cases will disclose that none of them are applicable to the facts shown by the record in this case, but that they are all based upon the liability of the consignee or of the transferee of a bill of lading. [2] Several decisions by this court are also cited by plaintiff in support of the proposition that the overruling of a demurrer to a petition is not error, where the allegations of the petition, by any fair interpretation, state lustrative of the cases relied upon is the a cause of action against the demurrant. Ilthird paragraph of the syllabus in Henry v. Gulf Coast Drilling Co., 56 Okl. 604, 156 Pac. 321, quoted in plaintiff's brief as follows: "It is not error to overrule a demurrer where the allegations of the petition, construed most favorably to the pleader, set up a cause of action." There can be no disagreement or dispute as to the correctness of the rule announced, but its application to the allegations of the second amended petition in the instant case is not apparent. There is no language in the second amended petition in this case which, by the most liberal interpretation, or by the indulgence of the strongest inference, can be said to state a cause of action against defendant, or to set out a basis of liability from the defendant to the plaintiff. It is therefore concluded that this cause should be remanded to the trial court, with directions to vacate the order overruling the demurrer to the second amended petition, and for further proceedings in conformity to law. (225 P.) RAINES v. STATE. (No. A-4961.) (Criminal Court of Appeals of Oklahoma. May 7, 1924.) (Syllabus by Editorial Staff.) Criminal law 303 Action abates upon 2. Indictment and information 125(42)—Indeath. The purpose of a criminal action being to punish defendant in person, the action must abate upon his death. dictment held bad as duplicitous. An indictment is duplicitous under this statute where it charges that on the day of May, 1921, Henry Roberts, a white man, and Nancy Jiles, a negro woman, did unlaw Appeal from District Court, Haskell Coun- fully, willfully, and wrongfully commit acts in ty; E. F. Lester, Judge. Henry Raines was convicted of the crime of manslaughter in the first degree, and he appeals. Remanded, with directions to abate. Fred H. Fannin and W. H. Brown, both of Stigler, for plaintiff in error. The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State. PER CURIAM. Plaintiff in error, Henry Raines, was convicted in the district court of Haskell county of the crime of manslaugh ter in the first degree for the killing of one Allen Wilson, alleged to have occurred on the 26th day of April, 1921. Judgment was rendered on the 28th day of July, 1923, and defendant was sentenced to serve a term of four years in the state penitentiary. Petition in error and case-made were filed in this court on the 17th day of December, 1923. Since the appeal was taken and before the final submission of the cause, suggestion of the death of plaintiff in error has been made, and his counsel of record, as well as the attorney general, have for this reason filed a motion to abate the cause, stating that plaintiff in error died on the 29th day of February, 1924. the presence and among divers and sundry persons which did then and there greatly disturb the public peace and which did openly outrage public decency and injure public morals by lasciviously meeting and associating with one another in public and private; that they drove together publicly in a buggy; that Henry Roberts went to and remained at the home of Nancy Jiles both in the daytime and at night; that they ate together at the same table; and that they were guilty of living together in open and notorious adultery. An instruction to the jury that the common sense of the community, and the sense of decency, propriety, and morality which most people entertain in the community in which the acts were alleged to have been committed, was the In a criminal action the purpose of the pro- test to apply to determine whether the aets ceeding being to punish the defendant in per-charged and proved were a crime under this statute was prejudicially erroneous. son, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceeding in the aboveentitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause is remanded to the district court of Haskell county, with directions to enter its appropriate order to that effect. ROBERTS et al. v. STATE. (No. A-4259.) (Criminal Court of Appeals of Oklahoma. April 26, 1924.) (Syllabus by the Court.) 125 (42) I. Indictment and information An indictment or information based on a statute providing that "any person who willfully and wrongfully commits any act 5. Lewdness-Statutes 74(1)-Criminal laws Intended to operate uniformly; rute of interpretation of statute denouncing lewdness stated. Laws against crime are intended to operate uniformly in every place within the territorial limits over which they extend. The true rule of interpretation of this statute is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and ized society, or any act which is unquestionably repugnant to the usages and customs of civilcriminal, though not covered by any other criminal statute, is a violation of the law. Appeal from County Court, Bryan County; John Finney, Judge. Henry Roberts and another were convicted of outraging public decency and morality, and they appeal. Reversed and remanded for new trial. For other cases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. E. Utterback, V. B. Hayes, J. T. Mc-, On one occasion Roberts, Nancy, and the chilIntosh, and D. S. McDonald, all of Durant, dren went blackberry gathering together. for plaintiffs in error. Nancy would bring cooked food, cakes, and The Attorney General and J. Roy Orr, other dainty edibles to Roberts' home, and Asst. Atty. Gen., for the State. BESSEY, J. This is a conviction for outraging public decency. The defendants in the trial court, plaintiffs in error here, were found guilty on an indictment charging a violation of the provisions of section 2287, Compiled Statutes 1921, which reads as follows: "Any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor." At the trial both defendants were found guilty as charged, and each was sentenced to pay a fine of $250. [2] The indictment charged that on the day of May, 1921, Henry Roberts, a white man, and Nancy Jiles, a negro woman, did unlawfully, willfully and wrongfully commit acts in the presence of and among divers and sundry persons which did then and there greatly disturb the public peace and which did openly outrage public decency and injure public morals by lasciviously meeting and associating together in public and in private; that they drove together publicly in a buggy; that Henry Roberts went to and remained at the home of Nancy Jiles both in the daytime and at night; that they ate together at the same table; and that they were guilty of living together in open and notorious adultery. The proof supporting the conviction was to the effect: That Henry Roberts was an elderly white man with several children, whose wife had died many years before. That after the death of his first wife he had married again and soon afterwards divorced his second wife. That Nancy Jiles was a negro woman of some means, and possessed of considerable real estate and live stock. That for years she had assisted Roberts in caring for his children and looking after his household cares and duties, and that he in turn assisted her in caring for her live stock and doing her chores. They lived in separate houses, not far apart, and often when Roberts was away from home Nancy stayed with his children during the night and on a few occasions had remained at Roberts' house over night when he was at home. For a time Roberts lived in one of Nancy's houses. Roberts borrowed money from Nancy to buy a telephone exchange, and they rode to Denison, Tex., together to consummate the deal. At and before the time this action commenced Roberts lived with his family in the telephone exchange building. was Roberts would carry uncooked provisions to Nancy's house and do her chores, sometimes milking the cows and feeding the chickens and taking some of the milk and eggs for his own use. There was no evidence of lascivious or adulterous conduct between the parties except as stated by Roberts' grown daughter, who admitted that she had hostile and un friendly feelings toward her father, who at one time chastised her for being out at night with some of her boy friends. She admitted that she had been adjudged a delinquent child by the juvenile court for improper relations with men, and that she was then an inmate of a reformatory institution for delinquent girls. She testified that on several occasions, without fixing any particular dates, her father went to Nancy Jiles' home in the nighttime, remaining there for several hours. [1] The incidents related by the different relations of the defendants at different times witnesses concerning the business and social and places covered a period of several years. No particular act or occurrence was proved or relied upon as a basis for the prosecution. No overt act was specifically proved as having taken place in May, 1921, as alleged in that the offense, if indeed it was an offense, the information. The proof did tend to show was a continuous one-an unnecessary habitual association between a white man and a negro woman. In communities where white people and negroes reside, business relations between the races are inevitable, and just how far social relations should extend is a question concerning which good people entertain different ideas. Social equality between the races is of course unthinkable; such equality would bring about the moral degradation of both races. But from the proof in this case we cannot say, as a matter of law, that the conduct of these two individuals, exclusive of that testified to by Roberts' daughter, so outraged public decency or was so injurious to public morals as to constitute a crime under the provisions or within the meaning of the act above quoted. Not every moral dereliction is a crime within the meaning and intended operation of this statute. [3] When a crime is alleged to have been committed in several different ways or by means of different methods, it may not be sufficient to charge the offense in the language of the statute. The state should charge and prove the particular act constituting the offense and the means and methods of committing it. The information should charge but one offense, though the means of committing it may be several. One accused of crime has a right to be confronted with a written ac (225 P.) cusation definitely apprising him of the identity and nature of the charge in such manner as will enable him to prepare his defense; and it is not sufficient to charge the offense in the words of the statute where the particulars essential to constitute a complete offense are not explicit enough to acquaint the accused with what he must meet upon the trial. Fletcher v. State, 2 Okl. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Porter v. State, 4 Okl. Cr. 654, 111 Pac. 1023; Simpson v. State, 5 Okl. Cr. 57, 113 Pac. 549; Cole v. State, 16 Okl. Cr. 103, 180 Pac. 713; 14 R. C. L. 187. As we interpret it, this indictment charges several separate offenses. It charges that a white man and a negro woman outraged public decency by adulterous conduct; it charges that they outraged public decency by riding together publicly; it charges that they outraged public decency by visiting together and at one another's homes, both in the day and in the nighttime. These are separate offenses, not means of committing one offense. One of these offenses, open and notorious adultery, is a crime over which the county court would have no jurisdiction in any event. The proof adduced by the state justifies the conclusion that these were separate offenses, because the different transactions offered in evidence were separate acts that occurred at various places and at times covering a period of years-some of them beyond the jurisdiction of the court. A single offense cannot be proved cumulatively by proving separate offenses, each a part of the whole offense sought to be made out. The information in this case is duplicitous. Under the accusation and proof some of the jurors may have concluded that the defendants were guilty because they ate at the same table; others may have concluded they were guilty because they sustained adulterous relations with one another; others may have found they outraged public decency by picking blackberries together-various ones finding them guilty for different reasons without any concurrence of all the jurors on any one of the offenses-in effect, a verdict of guílty on general principles. For this reason the demurrer to the information should have been sustained. [4] Another grievous error appears in the record. The court instructed the jury that -the common sense of the community and the sense of decency, propriety, and morality which most people entertain in the community in which the acts were alleged to have been committed was the test to apply to this statute. The assistant attorney general, in his brief, concurs in this view, stating that acts which might disturb the public peace, be injurious to public morals, and outrage public decency in one community might not disturb another community; that public morals and ideals might be different in one section of the country from those in another section; that it is the purpose of this law to protect the various communities of the state from any act which will grossly disturb the public peace or public morals, or outrage the public decency of the community disturbed; and that the statute might apply and was intended to apply differently in different communities. With this plastic, uncertain application of the statute, by which it might be made to apply differently in different communities, we cannot agree. Such a construction was not intended by the declaration of this court in the case of Fessler v. State, 12 Okl. Cr. 579, 160 Pac. 1129, which involved a notorious lascivious act of a married man with an unmarried girl; or the case of State v. Lawrence, 9 Okl. Cr. 16, 130 Pac. 508, a case relating to gambling in a public place. Both of those cases involved single, separate of fenses, as distinguished from a state of continuous conduct, as seems to have been the theory of the state in this case. [5] Be that as it may, laws against crime are intended to operate uniformly in every place within the territorial limits over which they extend. To hold that a penal law may or may not operate as such in a particular community, dependent upon public sentiment in that community, would in its last analysis amount to the antithesis of law and result in a kind of anarchy where every community might establish its own penal regulations. The true rule of interpretation of this statute should be and is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and repugnant to the usages and customs of civilized society, or any act which is unquestionably criminal, though not covered by any other criminal statute, is a violation of the act, independent of what the people of any particular community may think about it. For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for a new trial. MATSON, P. J., and DOYLE, J., concur. |